Embroiled in a hotly-contested divorce Marine Corps Sgt. Brian Foster was awarded custody of their children in California. Then his wife, Heather, fled to Colorado with the boys and sought the help of a feminist attorney specializing in women's rights.
Marine Sgt. Foster was then forced to negotiate once again for custody of his children. When those negotiations broke down Sgt. Foster found himself charged by his wife's attorney with assaulting, raping and threatening his wife.
As a result of false allegations of marital rape and domestic violence, Sgt. Foster was convicted by a general court martial in December 1999 of all charges and sentenced to 17 years confinement, stripped of his rank, all pay and allowances, and given a dishonorable discharge.
He served nine years, two months and 17 days of that sentence, most of it at the maximum security United States Disciplinary Barracks at Fort Leavenworth, Kansas, before being released and his rank restored on March 14, 2009, after a court of appeals vacated all findings of the trial court.
Sgt. Foster's prison ordeal began when a military jury at Camp Pendleton, California, convicted him of spousal rape and related charges on December 3, 1999. A general court-martial composed of officer members convicted Sgt. Foster, contrary to his pleas, of rape, two specifications of aggravated assault, and wrongfully communicating a threat in violation of Articles 120, 128 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934.
He was then sentenced to confinement for seventeen years, forfeiture of all pay and allowances, reduction in rank to private (pay grade E-1), and a dishonorable discharge. The convening authority (CA), Commanding General, 1 st Force Service Support Group, Marine Forces Pacific, Camp Pendleton, California, approved the sentence as adjudged.
The following observations are based on the findings of the court of appeals.
Heather and Brian Foster were married in 1993. In 1998 Sgt. Foster hired an attorney and filed for divorce in California and was given custody of their children. Heather then kidnapped the children and fled to Colorado. Following completion of requisite residency requirements she then filed for divorce against Brian in Colorado despite the pendency of the divorce case in California. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled to Colorado to escape her husband's abuse. Because of her unproven and unsubstantiated claim of domestic violence the warrant was never enforced.
Over the course of several months the estranged couple engaged in civil discovery and custody-related settlement discussions in California and Colorado. The primary issues pending in both jurisdictions related to the conditions by which Brian and Heather would share legal and physical custody of their two minor children. The civil litigation between the parties was ultimately consolidated under the Uniform Child Custody Jurisdiction Act with a judge from each state joining in pretrial settlement efforts. Indeed, following mediation of the matter, the parties agreed to a provisional agreement on custody in which Heather consented to Brian's joint legal and partial physical custody of their two children.
The record is opaque as to the reasons for the collapse of this agreement, aside from references to lapses of communication between the two civil attorneys. Almost certainly this breakdown was a deliberate manipulation of the situation by Heather's radical feminist (redfem) attorney. It is no surprise then that Heather's attorney in Colorado reported the alleged misconduct to prosecutorial officials at Camp Pendleton, which led to the charges against him.
The key witness against Sgt. Foster was his spouse and alleged "victim," Heather Foster. Based largely on the report of Heather's Colorado attorney, prosecutors alleged myriad instances of spousal abuse and one incident of rape over the course of the marriage.
The record shows that Sgt. Foster was convicted of rape solely upon the testimony of his estranged wife, nearly five years after the alleged incident occurred, and corroborated only by the victim's own statements to her friend nearly two years after the alleged incident.
In the time between the alleged act and her sworn testimony, Heather Foster, by her own admission, had voluntarily participated in several instances of intimate sexual contact with Brian, including the willing production of a sexually-explicit video.
Further, no forensically-related evidence was introduced at trial and no official report to any authority was made after the alleged rape took place. Indeed, the alleged rape was only "reported" to Marine Corps authorities by the alleged victim's divorce attorney in the midst of a complicated and contentious custody battle with Sgt. Foster when the couple's settlement agreement broke down.
Mrs. Kolstee testified that she was one of the Fosters' neighbors during the period when they lived in Hawaii and that she and Heather shared baby sitting duty for each other, shopped, and otherwise socialized together. Mrs. Kolstee testified that they became "very" close during their time in Hawaii. Despite their close proximity and regular contact Mrs. Kolstee testified that Heather never told her about any instances of abuse at the hands of her husband while they were stationed in Hawaii.
Mrs. Kolstee did offer some corroboration as to the charge of aggravated assault with a rifle, asserting that she saw what she believed was the end of a rifle barrel through the slot in the door at the Foster residence. Unfortunately, Mrs. Kolstee identified the "weapon" as a pistol in her statement to the Naval Criminal Investigative Service before the trial. Her credibility was also hindered by her discussion of the case with the alleged "victim" the evening before testifying at the UCMJ Article 32 Investigation.
As a result the appeals court found that this witness' testimony was extremely general, at times confusing, and contained factually unsupported opinion. More importantly, throughout her testimony no reference was made to any knowledge of the alleged rape. Obviously Sgt. Foster's defense attorneys were incompetent, which is confirmed in the following episodes.
Ms. Kossen on the other hand, testified that Heather Foster had reported the alleged "rape" to her approximately two years after it supposedly occurred. This rather significant delay seriously undermined the materiality, if not the credibility, of the victim's statement to her friend and that friend's testimony. Moreover, the testimony was admitted at trial as a prior consistent statement per Military Rule of Evidence 801, Manual for Courts-Martial, United States (1998 ed.), not as an excited utterance, or other statement contemporaneous with the alleged rape.
Additionally, Ms. Kossen offered testimony regarding her frequenting night clubs and drinking with Heather, and testimony pertaining to yet another allegation of aggravated assault with a weapon in California. However, she told investigators this was an incident that took place in Hawaii.
As a result the appeals court concluded that the prosecution attempted to bootstrap a rape conviction atop several instances of alleged assaultive conduct for which there was also little substantiation. In short, the Government's evidence of rape in this case, aside from Heather's testimony, consisted of statements by her to her friends and her mother. None of these statements were made proximal to the alleged rape.
The appeals court was also significantly disturbed by the fact that the allegations of rape were made in the midst of a hotly-contested divorce and custody battle, after failed attempts at settlement, under the terms of which the "victim" was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist.
Considered in the light most favorable to the Government, a reasonable member of the trial court could choose to believe the "victim," and to disbelieve evidence inconsistent with guilt. However, under the facts presented, the appeals court was unable to conclude that Sgt. Foster is guilty of rape beyond a reasonable doubt. To the contrary, the court found that his conviction for rape was factually insufficient, and was obtained as the result of other errors, discussed below. Therefore, the rape conviction was not allowed to stand.
The appeals court began by reviewing the manner in which expert testimony was admitted during this litigation with the proposition that "the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue."
They also considered the plenary understanding in military law that expert testimony is not permitted to replace the decision-making process of the fact finder or, more specifically, to advance the expert witness' opinion as to the "believability or credibility of victims or other witnesses" in a case dealing with sexual assault.
The appeals court restated that "expert testimony is admissible if it is relevant..., if its probative value outweighs its prejudicial value..., and if the testimony will assist the trier of fact..." In determining if a military judge has properly admitted expert testimony, they then tested his decision for an abuse of discretion.
It should be noted that the universe of Dr. Mary Dully's experience is defined by her work in the Camp Pendleton emergency room and her service with the San Diego Police Academy's Primary Aggressor Course, where she taught officers how to identify the person who "may have exerted power and control and been the winner in a physical altercation and helping officers on scene who is likingly [sic] the primary aggressor and who is actually the looser [sic] in the physical altercation." So the bias and dogma of her training and background are obvious from the outset. After reciting her professional qualifications, Dr. Dully went on to outline her vision of what domestic violence was based upon her "training and experience."
What followed was an extensive colloquy with trial counsel that involved this pediatrician's personal view of how domestic violence presents itself, and how both the aggressor and victim are likely to act according to the DV industry playbook. This discussion included offering the members of the trial court an ideological basis for why a victim might take certain action, such as remaining with her abuser over a long period of time, all in line with redfem DV dogma.
Notably, defense counsel did not voir dire the witness at trial. Further, a review of the record reveals that the trial counsel's questions and Dr. Dully's responses substantially mirrored the factual theory of the case presented by the Government. Yet the record is clear that the Dr. Dully reviewed no materials specific to this case and certainly did not conduct an examination of either Sgt. Foster or his estranged wife, Heather, in preparation for trial. In short, dogma and ideology were introduced unchallenged as evidence in this criminal case.
This outline of what constitutes abuse by this expert witness, and the close factual nexus between the call of those questions and the Government's position at trial, brings Dr. Dully's testimony very close to the nature of profile evidence of an offender, which is forbidden under military law. While the appeals court did not hold that Dr. Dully's "evidence" strayed over the permissible line, having drawn so very close to it, the Government's admission of Dr. Rusher's testimony immediately thereafter, exacerbates the dangerous nature of Dr. Mary Dully's unrestricted testimony.
Regarding the testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy, the court of appeals held that the military judge abdicated his role as impartial gatekeeper, and erroneously admitted testimony which compromised the credibility of this trial in its entirety. [emphasis added]
While the record indicates that Dr. Rusher was a physician, board certified in neurology and psychology, her testimony was that she was, in fact, a psychiatrist, who conducted a single interview with the alleged victim in this matter. Therefore, the military judge erred in permitting the members to consider Dr. Rusher's testimony.
In preparing their case for litigation, the prosecution arranged for Heather Foster to meet once with Dr. Rusher for an evaluation on November 10, 1999. The examination took two hours. Dr. Rusher testified that she took a history from Mrs. Foster, including a review of past substance abuse, history of abuse, social history, medical history, conducted a mental status evaluation, and developed an assessment.
Importantly, Dr. Rusher does not simply explain to the members of the court what Mrs. Foster claims. In sharp contrast to the fundamentals of admissible expert testimony, Dr. Rusher delivered the factual assertions of the victim as a medical diagnosis.
A: The symptoms that I observed in her was [sic] that she did experience a traumatic - actually, multiple traumatic incidents where her life was threatened and the life [sic] of her children were threatened; and she re-experienced this trauma through nightmares.
She would have nightmares of her husband placing a gun to her head for several hours. She had intrusive memories of the abuse where her life was threatened and the lives of her children were threatened. She had graphic memories where she was told she would be chopped up, and her children would be chopped up in small little pieces; and they would have a slow painful death...
She also had avoidance symptoms where she had difficulty going places that reminded her of the abuse. For example, it was very difficult for her to come to California, because in California was one of the places where the abuse occurred.
She had a numbing of responsiveness where her effect at times or her expression were somewhat flat and emotionless, which again is more -- one of the very common symptoms of post traumatic stress disorder order [sic].
As set forth above, Dr. Rusher went well-beyond a medical analysis of the facts before her. In short, she adopted the facts as advanced by the alleged "victim" and cloaked them in a physician's white coat, presenting them as scientific findings to the members of the trial court.
It is well established that "...to put 'an impressively qualified expert's stamp of truthfulness on a witness' story goes too far.' An expert should not be allowed to 'go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.'" However, this is a standard tactic of "expert" witnesses introduced by radical feminists in domestic violence trials for the reason, as here, that it frequently works to condemn a male defendant.
In reviewing Sgt. Foster's case, the court noted that the military judge took no action to correct the tone and content of Dr. Rusher's testimony during the tenure of her recitation to the court martial officers. The Court of Appeals for the Armed Forces (C.A.A.F.) has stated that:
"...it is [dangerous] for judges to receive uncritically just anything an expert wants to say. The evaluation of expert testimony does not end with a recitation of academic degrees. Everything the expert says has to be relevant, reliable, and helpful to the fact finder. A rational and demonstrable basis is the sine qua non of expert opinion." United States v. King, 35 M.J. 337, 342 (C.M.A. 1992).
Though the military judge failed to recognize this and take action to prevent the improper testimony, he ultimately recognized the threat it posed to the neutrality of his members, albeit not until the expert witness had concluded her testimony. At the close of her testimony, the military judge, without defense prompting, provided the members a curative instruction. The law is clear that such a curative instruction is the "preferred" remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused.
Generally courts assume that members are able to comport themselves with a curative instruction in the absence of evidence suggesting otherwise and apparently in Sgt. Foster's case the members made an honest effort to comport themselves with the trial judge's instruction.
However, the appeals court decided that in view of the testimony in conjunction with the entire trial, they were left convinced that the military judge was unable to "unring the bell." They further concluded that the error did "substantially sway" the members in their decision to convict Sgt. Foster, and to impose a punitive discharge and substantial confinement in his case. Thus, this error materially prejudiced Sgt. Foster's substantial rights.
Adding injury to insult the trial judge permitted the members to hear the testimony of an incompetent witness in the form of Jacob Foster, the six-year-old son of the "victim." The child's testimony was permitted without the military judge conducting an Article 39(a), UCMJ, session so as to make an assessment of the child's competence and probity.
After the child, who was coached and alienated from Sgt. Foster by his mother, began testifying the trial court found that the boy had not been born at the time of one of the charges about which he was testifying. Further, he was approximately two years old at the time of the most recent alleged act. When that was discovered the military judge excused the members of the trial court.
After consultation with counsel, the judge ordered the testimony to be stricken and instructed the members to disregard it. One can only wonder why defense counsel didn't demand a mistrial at this point? But when it is noted that the Judge Advocate General (JAG) defense attorney for Sgt. Foster was Lt. Kathleen Kadlec, USN, the picture of the "incompetent defense" becomes a bit clearer.
Were this the only error, the appeal judges felt they could rely on the members of the trial court to assiduously abide by their instructions to mitigate the error. But this testimony amounted to at least the third retelling of the victim's story, including one retelling by a physician as a matter of medical fact, and another who recited dogma as proven in every case of abuse.
In view of all these errors the appeals court found that the accumulation of errors described above required them to evaluate the fairness of the appellant's trial using the cumulative error doctrine. The scope of their evaluation of the errors in the case was made:
",,,against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the [trial] court dealt with the errors as they arose (including the efficacy or lack of efficacy of any remedial efforts); and the strength of the government's case."
Considering the improper testimony of Dr. Rusher, combined with the dogma of Dr. Dully, and the stricken testimony of the boy, the appeals court concluded that these errors called into question the basic fairness of Sgt. Foster's trial. They also questioned the efficacy of the trial courts curative instructions in that the military judge acted late with regard to both Dr. Rusher's improper testimony and the child's coached recitation.
The appeals court also noted that the Government's case was not strong, being based almost entirely on the statements of the "victim" and some testimony that Sgt. Foster was an abusive husband. They stated that but for the cloaking of the victim's statements in the physician's lab coat of Dr. Rusher they were unable to discern whether the members of the trial court would have convicted Sgt. Foster on any charge. They characterized the entire case as muddled and hearsay based.
"I've never bumped into something like this in 30 years of practicing law," said attorney Kevin Barry McDermott, who represented Foster for eight months between late 2000 and early 2001. "From all the feedback I've gotten, no one can remember a case that took this long to get to a preliminary review."
Sgt. Foster's case came at a bad time, said Michelle Linda McCluer, executive director of the National Institute of Military Justice in Washington, D.C. The Navy and Marine Corps' appeals system faced such a backlog of cases, she said, that the U.S. Court of Appeals for the Armed Forces eventually told those services to add staffing.
"It is a black eye for the military justice system," said Tom Umberg, an Army Reserve colonel called to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba. "This injustice should have been resolved in 18 months," Umberg said. "This was not the world's most complicated case."
Regarding prejudice the appeal judges found that this case is one in which the post-trial delay is so extreme as to "...give rise to a strong presumption of evidentiary prejudice." They then concluded that Sgt. Foster was clearly prejudiced by the post-trial delay after his general court-martial, and considered that as weighing heavily in his favor.
The appeals court also concluded that had just one of the seven previous lead judges in this matter conducted a thorough assessment of the record of trial in a timely fashion the extensive errors embracing this case would have been discovered and Sgt. Foster would have faced, at worst, the prospect of a new trial on all but the rape charge.
In short, nearly ten years of delay makes a difference in a case where the alleged instances of misconduct took place years before the actual trial. As a result of all the factors cited they determined that Sergeant Foster's conviction for rape was improper as the Government did not and could not establish his guilt. Therefore, he served nearly ten years of confinement in large measure for an alleged offense of which he should not have been convicted and that likely never happened.
The appeals court then considered the egregious delay in the reviews of Sgt. Foster's case and concluded that there was a due process violation resulting from the post-trial delay in processing this case. They found the delay "...is so egregious that tolerating it would adversely effect the public's perception of the fairness and integrity of the military justice system." Further, they concluded that the error created by the unreasonable delay is not harmless beyond a reasonable doubt. Even if it was harmless, the court was also aware of their authority to grant relief under Article 66, UCMJ, and stated that in this case, irrespective of the due process violation, they would have chosen to exercise that authority because of the unique circumstances.
As to an appropriate remedy the judges considered dismissing all charges and specifications with prejudice. However, they found that Sgt. Foster would be able to defend himself against any remaining charges.
So as to compensate Sgt. Foster for the actual prejudice discerned from ten years of confinement served in large measure for an offense which they dismissed, they limited Sgt. Foster's further exposure to any adjudged sentence to nothing more than a punitive discharge. Should the rehearing result in conviction, court of appeals believed that limiting Sgt. Foster's possible sentence will serve as adequate relief for the deprivation of his right to speedy post-trial review.
The Equal Justice Foundation most emphatically disagrees. The injustice of nearly ten years confinement at Fort Leavenworth on trumped up, vindictive, self-serving false allegations should free this Marine without question or reservation.
The charge of rape was dismissed with prejudice and cannot be retried. The remaining findings and the sentence were set aside. The record was returned to the Judge Advocate General for remand to an appropriate Convening Authority with a rehearing authorized. Sgt. Foster was ordered to be released from confinement forthwith and that was done on March 14, 2009. He is now back in the Marine Corps with his rank restored. He is still trying to collect back pay for nearly 10 years of confinement.
This is by no means the only case the Equal Justice Foundation has seen where members of America's Armed Forces have been falsely convicted based on perjury, false allegations, radical feminist (redfem) dogma and ideology, incompetent defense counsel, and biased and dysfunctional courts. But Sgt. Brian Foster's case well illustrates the need for the Foundation and why your support is needed.